Tobacco Racketeers Get Off Easy

If only a public shaming were enough to
punish the tobacco industry for its half-century of
deception in promoting a product so damaging to the
nation’s health. There are plenty of shameful acts
depicted in a voluminous court opinion issued last week
that found that five big tobacco companies had violated
civil racketeering laws. But there is apparently nothing
that can be done to force them to disgorge their
ill-gotten profits or punish them for past mendacities.

Last week’s ruling by Judge Gladys
Kessler in the Federal District Court for the District
of Columbia amounted to a moral victory for prosecutors
in a case they had originally hoped would impose huge
financial penalties. The 1,742-page opinion lays out in
painstaking detail how the industry has obfuscated the
health consequences of smoking, duped people into
thinking that low-tar and low-nicotine cigarettes might
be less harmful, manipulated cigarette design to ensure
an addictive dose of nicotine, downplayed the adverse
effects of secondhand smoke and seduced young people
into taking up smoking while denying that it was doing
any such thing. To hide its tracks, the industry,
abetted by its lawyers, suppressed research and
destroyed documents.

The judge was clearly appalled that
the companies marketed and sold their products “with
zeal, with deception, with a single-minded focus on
their financial success and without regard for the human
tragedy or social costs that success exacted.” But she
felt hemmed in by an appeals court decision, which held
that under the civil racketeering statute, no damages
could be imposed for past misdeeds, only remedies to
restrain future misconduct.

That not only ruled out the huge $280
billion penalty originally sought when the suit was
filed in 1999, but even, the judge concluded, the modest
billions sought by prosecutors last year to help people
quit smoking and reduce the incidence of youth smoking.
All the judge felt she could do was to order the
companies to mount an advertising campaign to correct
years of misrepresentations and to stop using such
misleading terms as “light” or “low tar” or “mild” to
imply health benefits.

Even these remedies may be appealed by
the companies. The prospects for reining in this rogue
industry seem limited unless Congress finds the gumption
to crack down — or top tobacco executives develop a
conscience and decide to get out of the death-dealing
business.